Earlier this year in Fischer v. United States, the Supreme Court<\/a> narrowed a federal obstruction law used against Jan. 6 defendants<\/a>, overturning a ruling from the federal appeals court in Washington. That same appeals court just upheld a Jan. 6 defendant\u2019s federal trespass conviction, setting up a potential appeal for the justices to curb that law, too.<\/p>\n

Tuesday\u2019s decision<\/a> came in the case of Cowboys for Trump leader Couy Griffin, who was convicted in 2022 under the trespass law<\/a> <\/strong>that <\/strong>bars people from knowingly entering or remaining in \u201cany restricted building or grounds\u201d without lawful authority. Such an area is defined under the law as \u201cany posted, cordoned off, or otherwise restricted area\u201d where a Secret Service protectee \u201cis or will be temporarily visiting.\u201d<\/p>\n

Griffin, who in January 2021 was an elected county commissioner in New Mexico, argued that people can only be convicted under that law if they know the basis for restricting the area is to safeguard a Secret Service protectee.<\/p>\n

But a divided three-judge appellate panel held Tuesday that \u201cknowingly breaching the restricted area suffices, even without knowing the basis of the restriction \u2014 here, the presence of Vice President Pence at the Capitol on January 6 \u2014 which merely confirms that such trespasses are within Congress\u2019s legislative authority.\u201d<\/p>\n

The two judges in the majority, Barack Obama appointee Cornelia Pillard and Bill Clinton appointee Judith Rogers, noted that a different reading \u201cwould impair the Secret Service\u2019s ability to protect its charges.\u201d They concluded that \u201c[n]either the text nor the context of the statute supports that reading.\u201d<\/p>\n

Dissenting, Donald Trump appointee Gregory Katsas argued that the law puts a greater burden on the government than the majority thinks. He said that on top of proving Griffin\u2019s knowledge that the Capitol grounds \u201cwere posted, cordoned off, or otherwise restricted,\u201d prosecutors also had to prove that he knew Pence was present \u201cwhen he entered or remained in those restricted grounds.\u201d<\/p>\n

Ultimately, Katsas\u2019 opinion could carry the day \u2014 or at least help Griffin get his case to the justices. Indeed, in the Fischer case that narrowed Jan. 6 obstruction charges, Katsas dissented<\/a> from the majority panel ruling that the Supreme Court overturned in June. <\/p>\n

And in Griffin\u2019s case, Katsas noted that federal prosecutors had secured over 470 convictions under the law and that, in all of them, \u201ccriminal liability may turn on whether the defendant had to know that Vice President Pence was present at the time of the trespass.\u201d Katsas added that the trial judges in Washington \u201care deeply divided on that question; six have answered yes, while ten have answered no.\u201d<\/p>\n

Both the broad impact of an issue and division over it can lead to the Supreme Court stepping in.<\/p>\n

The justices declined<\/a> to take up a separate appeal from Griffin in March. That appeal related to him being barred from office after Jan. 6. He was barred from state office<\/a> as opposed to federal office in the case of Trump, whom the high court cleared to run for president again<\/a> despite the insurrection. But Griffin may have a better outcome if he petitions the justices to review his trespass conviction. \u00a0\u00a0\u00a0<\/p>\n

Subscribe to the\u00a0<\/strong>Deadline: Legal Newsletter<\/strong><\/a>\u00a0for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump\u2019s legal cases.<\/strong><\/p>\n<\/div>\n

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Jordan Rubin<\/a><\/span><\/span><\/a><\/span><\/a><\/span><\/p>\n
Jordan\u00a0Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney\u2019s Office in Manhattan\u00a0and is the author of \u201cBizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.<\/p>\n<\/div>\n
Read More<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"
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